BNSF Railway filed a request Tuesday to join a federal lawsuit brought by Millennium Bulk Terminals’ parent company against Gov. Jay Inslee and key members of his administration over permit denials for the proposed $680 million Longview coal terminal.
The original complaint, filed on Jan. 3 by Utah-based Lighthouse Resources Inc., contends that state officials have violated the U.S. Constitution's interstate commerce clause and three different federal statutes by blocking the transport of coal from its mines in Wyoming and Montana.
While BSNF is asking to join the case as a plaintiff, a coalition of five environmental groups fighting the terminal also asked Tuesday to intervene in the case on behalf of the state. The coalition includes the Washington Environmental Council and Columbia Riverkeeper. It argues that the groups have an interest in the case because the scale of the project presents unacceptable environmental impacts.
“Hundreds of thousands of comments have poured in from Washingtonians and allies across the nation who oppose coal export,” Jasmine Zimmer-Stucky, a senior organizer with Columbia Riverkeeper, said in a statement to The Daily News Wednesday. “We aim to ensure that the these voices are heard and that Washington continues to protect its most vulnerable populations from increased cancer risk and clogged rail lines.”
In its complaint, BNSF echoed Lighthouse’s allegation that Director of Ecology Maia Bellon and Department of Natural Resources Director Hillary Franz — who are named as defendants — have misused their state regulatory authority to focus on a single commodity.
Ecology denied a key water quality permit needed for the project last September, citing nine different adverse environmental impacts — including increased rail traffic. DNR also denied an aquatic lands sublease in January 2017, raising questions about how potential coal dust spills would affect fish and the health of urban forest lands along the rail routes. Millennium is appealing both agencies’ permitting decisions.
The denials show that state regulators intend to stop coal from being used halfway across the globe in Asia by building a “regulatory wall,” according to BNSF’s complaint.
“As a common carrier, BNSF is required by federal law to move regulated goods, including coal,” Roger Nober, BNSF’s executive vice president of law and corporate affairs, said in a press release Wednesday. “Permitting this facility should have followed the long-established process of making a determination based on site-specific impacts; instead they have taken it upon themselves to deny permits based on so-called rail impacts. This is a very clear violation of federal law.”
The complaint also notes that in 2010, Washington’s Department of Transportation studied the effects of adding eight roundtrip passenger rail trips per day in roughly the same area as the proposed coal terminal. WSDOT and the Federal Railroad Administration ultimately concluded that the increase in rail traffic would cause no significant impact under the National Environmental Policy Act.
The case’s outcome could affect and harm BNSF’s ability to operate effectively throughout the state, the company said in its complaint.
Inslee’s office, meanwhile, is standing by Ecology’s permit denial.
“We are confident that Ecology’s permitting decision will hold up as the appeals process moves forward,” spokeswoman Tara Lee said in a statement to The Daily News. In a similar statement, Ecology spokesman Dave Bennett expressed confidence that Ecology will prevail in all legal challenges.